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What Cognitive Functions Should Be the Object of Efforts to Enhance Judicial Cognition?

THE TASK OF JUDGING

A trial judge must perform multiple tasks in the course of judicial decision- making.ii For our purposes here, we distinguish between two main tasks for the judge acting without a jury, each of which is complex in its own right— “finding the facts” and “applying the law.”111

The process of finding the facts involves hearing expert and nonexpert testimony and examining other evidence such as documents or objects; determining the weight to attribute to the evidence based on judgments about credibility, quality, and relevance; and ultimately choosing which “story” is more likely and whether the evidence has established a degree of likelihood that is legally sufficient. For example, in criminal matters, the prosecutor must prove the guilt of the accused party beyond a reasonable doubt. In civil suits, the plaintiff must establish a case “on the balance of probabilities.” Obviously, this is a complex set of tasks involving a multitude of cognitive processes.

Trial judges must also apply multiple bodies of law. The rules of evidence may be invoked in relation to the fact-finding process. The parties will also advance a claim to an outcome on the basis that a particular law is applicable and directs that outcome. The process of applying the law involves careful deliberative processes including identifying the relevant legal rules, interpreting their meaning, and determining how they apply to the facts of the case at hand.

Given the complexity and heterogeneity of cognitive tasks that a judge performs, what then would it mean to enhance judicial cognition? Sandberg et al. consider this matter in relation to judicial actors generally—including judges, jury members, and lawyers—and focus on problems of alertness and memory.5

Indeed, alertness is undoubtedly important for a sitting trial judge. Periodic complaints about the “sleeping judge” reveal this to sometimes be a problem.13 Doubtless, caffeine is used frequently in the judiciary for this purpose, as it is elsewhere. Memory is also an important cognitive function, although court transcripts and note-taking can assist with remembering the evidence and arguments.

The Danziger et al. study is also troubling, although the causes of the oscillating pattern of parole decisions coinciding with snack and lunch breaks are unclear. If it does reveal the impact of the depletion of mental resources, this seems more alarming than actual somnolence, which can be detected by others more easily. It is presently unclear whether any of the “cogniceuticals” commonly mentioned in the cognitive enhancement debate, such as meth- ylphenidate or modafinil, could address this type of problem. As with other occupations, the solution of reduced workload and more breaks runs up against economic pressures.

Another important capacity for judges is emotional regulation, given the sometimes upsetting nature of the evidence or the frustrating behavior of some of the parties and lawyers. Concerns about uncontrolled emotional reactions to extremely upsetting evidence are revealed by rules of evidence that weigh the probative value of evidence against its inflammatory or prejudicial effect. This type of concern is reasonable in light of evidence of the effects of gruesome photographic evidence on mock jurors’ verdicts, although judges may react differently by virtue of repeated exposure.14

In what follows, we select two other potential areas for the enhancement of judicial cognition. We will consider the problem of implicit racial bias in assessing the credibility of testifying witnesses because it is an important issue that strikes at the bedrock requirement of impartiality in judging. It also reveals an interesting quandary specific to the enhancement of judicial cognition— the problem that enhancement may serve the legitimate interests of one set of litigants at the expense of the legitimate interests of another. In particular, as we will explain, measures to enhance judicial decision-making by reducing the effects of implicit racial bias might undermine the accuracy of deception detection more generally. This type of problem does not arise when we consider the more commonly discussed enhancements of surgeons or pilots because everyone has a similar interest in the alertness of surgeons and pilots.

Second, we will consider evidence from recent research into the role of emotions in moral reasoning and the significance of drugs that may cause judges to be more or less retributive or consequentialist in their judgments about appropriate criminal sentences. Some have suggested that criminal punishment should be more consequentialist rather than being based on retributive moral blame, and there are signs that certain pharmaceutical manipulations could have this effect. This example also reveals an interesting problem specific to the cognitive enhancement of judges. The legitimacy of the justice system relies on the respect and acceptance of the public, and so there is a risk in enhancing judges too much if this causes their decisions to deviate too much from public moral sentiments.

 
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